SUPREME COURT DECISIONS SUPPORT DUE PROCESS:
Now It Is Congress's Turn to Act

The Bush Administration since September 11 has asserted extraordinary detention authority over both citizens and non-citizens. The Supreme Court yesterday addressed some of the issues raised by the Administration's actions in ruling that U.S. citizens subjected to indefinite detention as enemy combatants and non-citizens jailed at the Guantanamo Naval Base must be permitted to challenge their detention in court. In the case of Hamdi v. Rumsfeld, the Court reaffirmed that "a state of war is not a blank check for the President when it comes to the rights of the nation's citizens." The Court held that due process requires that U.S. citizens, even those designated by the President as enemy combatants, be able to challenge the factual basis for their detention. In the Guantanamo cases, the Supreme Court held that U.S. federal courts have jurisdiction to entertain challenges to the legality of detentions of non-citizens captured on foreign battlefields.

The Administration's controversial detention policies have gone well beyond combatants captured on the battlefield. After 9/11, hundreds of non-citizens were held virtually incommunicado for weeks without notice of the charges against them. Tellingly, none of these detainees ever were charged in connection with the attacks and the vast majority were charged only with civil violations of their immigration status. Nevertheless, immigration proceedings against them were held in secret, closed to the public and even family members. Indeed, the government to this day has refused to divulge these detainees' names.

Yesterday's Court decisions serve as an important check on the Executive branch's authority to unilaterally restrict basic individual rights and liberties. They reaffirm that due process is central to the integrity of our system of government, especially in times of great turmoil. Justice O'Connor underscores this centrality in the Hamdi opinion: "It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

Our nation can best preserve this commitment through the enactment of the recently introduced Civil Liberties Restoration Act (CLRA -- S.2525/H.R. 4591). AILA urges Congress to step up to the plate and broadly support this much needed measure that would go far to reaffirm our commitment to basic principles of due process. It would roll back, in a targeted and responsible manner, the excesses of the government's response to the threat of terrorism. For example, the Act prohibits blanket closures of immigration hearings, but authorizes partial or full closure of individual cases when necessary to protect national security. It requires that individuals who are detained be served with notice of the charges against them in a timely fashion and be brought before an immigration judge. It mandates that all individuals be accorded an individualized bond hearing. These and the other measures in the bill simply seek to ensure that immigrants are treated with the fairness and respect that our Constitution requires.

The Civil Liberties Restoration Act is balanced legislation which seeks to restore critical protections and fundamental freedoms without compromising our nation's safety. Immigrant communities feel besieged and betrayed by many of government's post-9/11 policies. The United States drew these immigrants to its shores with the promise of freedom and liberty, but that promise has been broken. The Civil Liberties Restoration Act attempts to make good on that promise and merits becoming law.

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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, and professional services. AILA advocates before Congress and the Administration and provides liaison with the Department of Homeland Security and other government agencies. AILA is an Affiliated Organization of the American Bar Association.